Post v. Westervelt — 6 N.Y. Super. Ct. 689

Majority

p. 689

Post v. Westervelt.

Headnote

Where the plaintiff, ia a suit commenced before the code, omitted to try his suit when called, by reason of which it was placed at the bottom of the calendar at the next term, and although noticed, was for that cause not reached on the calendar, but the plaintiff had been placed under a stipulation to try the cause at the last-mentioned term; it was held, that he was entitled to the costs of that term as costs in the cause.

January 11, 1852.

The above point was ruled by

with'the concurrence of all the Justices. At the June term, 1850, the plain

p. 690

tiff noticed the cause for trial, it was reached and called on the calendar, but the plaintiff did not move it. By the statute, it thus became the clerk’s duty to place the cause on the calendar, when again noticed, as of the date of its being so called. The defendant moved for judgment as in case of a nonsuit, from which the plaintiff was relieved on paying costs and stipulating to try the cause at the next term. He accordingly noticed the cause for the next term, but it was not reached on the calendar. It would have been reached, if it had stood upon the date of the issue as it was prior to the neglect to try it at the June term.

A. L. Brown, for the defendant.

L. 8. Thomas, for the plaintiff.